Communication breakdown: Public Protector Busisiwe Mkhwebane intended to subpoena both First National Bank and Absa but the one for FNB went to Absa. (David Harrison/M&G)
A series of errors saw public protector Busisiwe Mkhwebane serving Absa with a subpoena intended for FNB. This happened during her investigation into corruption-tainted Bosasa’s R500 000 donation to the CR17 ANC presidential election campaign and whether President Cyril Ramaphosa had misled Parliament about it.
Since the release of her report into the allegations of violations of the executive ethics code through improper relations between Ramaphosa and Bosasa, Mkhwebane and her office have consistently maintained that Absa was served with a subpoena for the Edelstein, Farber and Grobler account, the lawyers’ trust account used for the CR17 campaign.
In an interview with the SABC late last month, Mkhwebane said: “We have subpoenaed the records; they’ve never responded. I have proof, so we never received these records from them.
“We received the records through other investigative processes which we followed. We have done our work, we have all the evidence, I can even produce those subpoenas. We have got proof that they were delivered and we didn’t receive any response from them.”
Despite these assertions, email communications between the protector’s office and Absa tell a story of a comedy of errors, with wrong email addresses being used. The emails show that, on February 4, Absa received a physical subpoena that was meant for FirstRand Group’s head of fraud risk management. The subpoena had been signed by Mkhwebane on January 29.
The following day, February 5, Nonkululeko Dunga, the personal assistant to Marthinus Janse van Rensburg, Absa’s general counsel for legal services, wrote to the public protector’s chief investigator, Rodney Mataboge, saying: “Please note that Marthinus has received an incorrect subpoena that was supposed to be sent to FNB. Please can you courier the correct one that is meant for Absa.”
But Dunga missed one letter in the email address, which resulted in it never reaching Mkhwebane’s office.
Also, Mataboge’s email on February 4, which was a follow-up to the physical subpoena, never got to Van Rensburg because he too had typed the email address incorrectly.
Between February and the release of Mkhwebane’s report last month, there was no further communication or attempts at communication between Absa and the public protector. And there is no proof of any person at Absa signing for the receipt of any subpoena.
This has led to an impasse between the two parties, with Mkhwebane stating during the release of her report that Absa had refused to co-operate. Her spokesperson, Oupa Segalwe, previously said: “When Absa was not forthcoming with regard to the subpoena that was served on it, we did not pursue them because we were able to obtain the same information through the FIC [Financial Intelligence Centre]. It is the statutory body that has access to those things.”
The public protector’s office did not respond to a request for information about who had received and signed for the subpoena at Absa.
In an email to Mkhwebane on July 23, Absa demanded a copy of the subpoena she insisted was served on the bank. “In this respect, our records reflect that your offices attempted to serve an invalid subpoena that was addressed to First Rand Bank, dated 29 January 2019, on Absa … We are sure that you will appreciate that it would be irregular for Absa to act on an invalid subpoena,” said Steven Palmer, head of Absa Africa’s litigation section. Mkhwebane’s office responded with an e-mail attaching the February subpoena that Absa says it never received. It only got the one intended for FNB.
The impasse between Absa and the protector has led to Ramaphosa’s office questioning the legality of how the CR17 bank records were obtained. Presidential spokesperson Khusela Diko said: “The reason we say that is, in her report, the public protector had listed a subpoena to Absa bank and FNB as being the sources of information she had regarding those bank accounts. Absa is on record having said that they have not received a subpoena from the public protector. Now, the question stands: Where did the public protector get those bank statements?”
She added that the public protector “also did not list Standard Bank as one of the banks that she has subpoenaed, but she has bank accounts of the Ria Tenda Trust, which banks with Standard Bank … now, where did she get that information?”
The president’s legal team has since asked the high court that certain documents in Mkhwebane’s report be sealed to protect confidential banking information.
The embattled public protector has fought claims that she obtained this information illegally, stating that she had sought the assistance of the FIC, which had handed over the bank account information to her office.
It is unclear whether the FIC did ask Absa for the information that is now in Mkhwebane’s possession, as required by law and as stated in the FIC Act section 27.
The FIC did not respond to questions about whether it had requested the information from Absa.
Segalwe said the allegations that Mkhwebane had obtained information illegally was part of an attempt to taint the protector. “Every bank record that had a bearing on the investigation or which involved the donations was obtained from the FIC [Financial Intelligence Centre].”
This was done in terms of a memorandum of understanding entered into by the FIC and the public protector, he said.